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EXHIBIT 3
NEITHER THIS WARRANT NOR ANY SECURITIES ISSUABLE UPON THE EXERCISE OF THIS
WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR
DISPOSED OF WITHOUT COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS
OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS
THEREFROM.
No. i2-001 Right to Purchase
Shares of Common Stock
of The viaLink Company
THE VIALINK COMPANY
COMMON STOCK PURCHASE WARRANT
October 12, 1999
The viaLink Company, an Oklahoma corporation (the "Company"), hereby
certifies that, for value received, i2 Technologies, Inc., a Delaware
corporation ("i2"), or its permitted assigns, is entitled, subject to the terms
set forth below, to purchase from the Company at any time or from time to time
before 5:00 p.m. (Dallas, Texas time), on October 12, 2001, up to 186,567 fully
paid and nonassessable shares (the "Warrant Shares") of the Company's Common
Stock, $0.001 par value, at a purchase price per share of $26.80 (such purchase
price per share as adjusted from time to time as herein provided is referred to
herein as the "Purchase Price"). The number and character of such shares of
Common Stock and the Purchase Price are subject to adjustment as provided
herein.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a) The term "Business Day" means any day except a Saturday or
a Sunday or other day on which the National Market (as hereinafter
defined), or any national securities exchange on which the Common Stock
(as hereinafter defined) is traded or admitted for unlisted trading
privileges, is closed for trading.
(b) The term "Company" shall include The viaLink Company, and
any corporation which shall succeed to, or assume the obligations of,
The viaLink Company hereunder.
(c) The term "Common Stock" includes the Company's common
stock, $0.001 par value, as authorized on October 12, 1999, and/or any
Other Securities into which or for which the Warrant Shares may be
converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
(d) The term "Fair Market Value" per share of Common Stock
means:
(1) If the Common Stock is traded on a national
securities exchange or admitted to unlisted trading
privileges on such an exchange, or is listed on the
National Market (the "National Market") of the
National Association of Securities Dealers Automated
Quotations System (the "NASDAQ"), the Fair Market
Value shall be the average of the last
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reported sale prices of the Common Stock on such
exchange or on the National Market over the five
consecutive Business Days immediately preceding the
date of determination or, if the last reported sale
price information is not available for such days, the
average of the mean of the closing bid and asked
prices for such days on such exchange or on the
National Market;
(2) If the Common Stock is not so listed or admitted to
unlisted trading privileges, the Fair Market Value
shall be the average of the mean of the last bid and
asked prices reported over the five consecutive
Business Days immediately preceding the date of
determination (A) by the NASDAQ or (B) if reports are
unavailable under clause (A) above, by the National
Quotation Bureau Incorporated; and
(3) If the Common Stock is not so listed or admitted to
unlisted trading privileges and bid and ask prices
are not reported, the Fair Market Value shall be the
price per share which the Company could obtain from a
willing buyer for shares of Common Stock, as such
price shall be determined by mutual agreement of the
Company and the holders of rights to purchase a
majority of the shares of Common Stock purchasable
under all warrants then outstanding and issued
(directly or indirectly) from that certain Common
Stock Purchase Warrant, dated October 12, 1999,
issued by the Company to i2 Technologies, Inc. which
originally granted to i2 Technologies, Inc. the right
to purchase 186,567 shares of Common Stock (Warrant
No. i2-001). If such holders and the Company are
unable to agree on such Fair Market Value, the
Company shall select a pool of three independent and
nationally-recognized investment banking firms from
which such holders shall select one such firm to
appraise the fair market value of the Warrant and to
perform the computations involved. The determination
of such investment banking firm shall be binding upon
the Company and such holders in connection with any
transaction occurring at the time of such
determination. All expenses of such investment
banking firm shall be borne by the Company. In all
cases, the determination of fair market value shall
be made without consideration of the lack of a liquid
public market for the Common Stock and without
consideration of any "control premium" or any
discount for holding less than a majority or
controlling interest of the outstanding Common Stock.
(e) The term "Other Securities" refers to any stock (other
than Common Stock) or other securities of the Company or any other
person (corporate or otherwise) (i) which the holder of this Warrant at
any time shall be entitled to receive, or shall have received, on the
exercise of this Warrant, in lieu of or in addition to shares of the
Company's common stock, $.001 par value per share, as authorized on
October 12, 1999, or (ii) which at any time shall be issuable or shall
have been issued in exchange for or in replacement of shares of the
Company's common stock, $.001 par value per share, as authorized on
October 12, 1999, or Other Securities pursuant to Section 4 or
otherwise.
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1. Exercise of Warrant.
1.1 Full Exercise. This Warrant may be exercised at
any time after the date hereof during normal business hours before its
expiration in full by the holder hereof by surrender of this Warrant, with the
form of subscription at the end hereof duly executed by such holder, to the
Company at its principal office, accompanied by payment, in cash, by bank
cashier's check payable to the order of the Company or by wire transfer, in the
amount obtained by multiplying the number of shares of Common Stock and/or Other
Securities for which this Warrant is then exercisable by the Purchase Price then
in effect.
1.2 Partial Exercise. This Warrant may be exercised
at any time during normal business hours after the date hereof before its
expiration in part by surrender of this Warrant and payment of the Purchase
Price then in effect in the manner and at the place provided in subsection 1.1,
except that the amount payable by the holder on such partial exercise shall be
the amount obtained by multiplying (a) the number of shares of Common Stock
and/or Other Securities designated by the holder in the subscription at the end
hereof by (b) the Purchase Price then in effect. On any such partial exercise,
the Company at its expense will forthwith issue and deliver to or upon the order
of the holder hereof a new Warrant or Warrants of like tenor, in the name of the
holder hereof or as such holder (upon payment by such holder of any applicable
transfer taxes) may request, filling in the aggregate on the face or faces
thereof the number of shares of Common Stock and/or Other Securities for which
such Warrant or Warrants may still be exercised.
1.3 Company Acknowledgment. The Company will, at the
time of any exercise of this Warrant, upon the written request of the holder
hereof, acknowledge in writing its continuing obligation to afford to such
holder any rights to which such holder shall continue to be entitled after such
exercise in accordance with the provisions of this Warrant. If the holder shall
fail to make any such written request, such failure shall not affect the
continuing obligation of the Company to afford to such holder any such rights.
1.4 Trustee for Warrant Holders. In the event that a
bank or trust company shall have been appointed as trustee for the holder of
this Warrant pursuant to subsection 4.2, such bank or trust company shall have
all the powers and duties of a warrant agent appointed pursuant hereto and shall
accept, in its own name for the account of the Company or such successor person
as may be entitled thereto, all amounts otherwise payable to the Company or such
successor, as the case may be, on exercise of this Warrant pursuant to this
Section 1.
2. Delivery of Stock Certificates, Etc. on Exercise. As soon
as practicable after the exercise of this Warrant in full or in part, and in any
event within ten Business Days thereafter, the Company at its expense (including
the payment by it of any applicable issue taxes) will cause to be issued in the
name of and delivered to the holder hereof, or as such holder (upon payment by
such holder of any applicable transfer taxes) may direct, a certificate or
certificates for the number of fully paid and nonassessable shares of Common
Stock (or, to the extent not constituting Common Stock, Other Securities) to
which such holder shall be entitled on such exercise, plus, in lieu of any
fractional share to which such holder would otherwise be entitled, cash equal to
such fraction multiplied by the then current Fair Market Value of one full
share, together with any other property (including cash, where applicable) to
which such holder is entitled upon such exercise pursuant to Section 1 or
otherwise.
3. Adjustment for Dividends in Other Stock, Property, etc.;
Reclassification, etc. In case at any time or from time to time, the holders of
Common Stock (or, to the extent not constituting Common Stock, Other Securities)
in their capacity as such shall have received, or (on or after the record
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date fixed for the determination of shareholders eligible to receive) shall have
become entitled to receive, without payment therefor,
(a) other or additional stock or other securities or property
(other than cash) by way of dividend, or
(b) any cash (excluding cash dividends payable solely out of
earnings or earned surplus of the Company), or
(c) other or additional stock or other securities or property
(including cash) by way of spin-off, split-up, reclassification,
recapitalization, combination of shares or similar corporate
rearrangement,
other than additional shares of capital stock issued as a stock dividend or in a
stock split (adjustments in respect of which are provided for in Section 5),
then and in each such case the holder of this Warrant, on the exercise hereof as
provided in Section 1, shall be entitled to receive the amount of stock and
other securities and property (including cash in the cases referred to in
subdivisions (b) and (c) of this Section 3) determined by multiplying (i) the
amount of stock and other securities and property (including cash in the cases
referred to in subdivisions (b) and (c) of this Section) which such holder would
hold on the date of such exercise, if on the record date with respect to or the
date of the issuance of the stock, securities, property and cash referred to in
subdivisions (a), (b) or (c) of this Section 3, as applicable, it had been the
holder of record of the number of shares of Common Stock called for on the face
of this Warrant and had thereafter, during the period from the date hereof to
and including the date of such exercise, retained such shares and all such other
or additional stock and other securities and property (including cash in the
cases referred to in subdivisions (b) and (c) of this Section 3) receivable by
it as aforesaid during such period, giving effect to all adjustments called for
during such period by Sections 4 and 5 by (ii) the percentage of this Warrant
then being exercised.
4. Adjustment for Reorganization, Consolidation, Merger, etc.
4.1 Reorganization, Consolidation, Merger, etc. In
case at any time or from time to time, the Company shall (a) effect a
reorganization, reclassification or recapitalization (b) consolidate with or
merge into any other person, or (c) transfer all or substantially all of its
properties or assets to any other person under any plan or arrangement
contemplating the dissolution of the Company, then, in each such case, the
holder of this Warrant, on the exercise hereof as provided in Section 1 at any
time after the consummation of such reorganization, reclassification,
recapitalization, consolidation or merger or the effective date of such
dissolution, as the case may be, shall receive, in lieu of the Common Stock (or,
to the extent not constituting Common Stock, Other Securities) issuable on such
exercise prior to such consummation or such effective date, the amount of stock
and other securities and property (including cash) determined by multiplying (i)
the amount of the stock and other securities and property (including cash) to
which such holder would have been entitled upon such consummation or in
connection with such event, as the case may be, if such holder had so exercised
this Warrant, immediately prior thereto, all subject to further adjustment
thereafter as provided in Sections 3 and 5 by (ii) the percentage of this
Warrant then being exercised.
4.2 Dissolution. In the event of any dissolution of
the Company following the transfer of all or substantially all of its properties
or assets, the Company, prior to such dissolution, shall at its expense deliver
or cause to be delivered the Other Securities and property (including cash,
where applicable) receivable by the holders of this Warrant after the effective
date of such dissolution
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pursuant to this Section 4 to a bank or trust company having its principal
office in Dallas, Texas, as trustee for the holder of this Warrant.
4.3 Continuation of Terms. Upon any reorganization,
consolidation, merger or transfer (and any dissolution following any transfer)
referred to in this Section 4, this Warrant shall continue in full force and
effect, subject to expiration in accordance with Section 17 hereof, and the
terms hereof shall be applicable to the Other Securities and property receivable
on the exercise of this Warrant after the consummation of such reorganization,
consolidation or merger or the effective date of dissolution following any such
transfer, as the case may be, and shall be binding upon the issuer of any such
Other Securities, including, in the case of any such transfer, the person
acquiring all or substantially all of the properties or assets of the Company,
whether or not such person shall have expressly assumed the terms of this
Warrant as provided in Section 6.
5. Anti-Dilution Adjustments.
5.1 General. The Purchase Price shall be subject to
adjustment from time to time as hereinafter provided. Upon each adjustment of
the Purchase Price, the holder of this Warrant shall thereafter be entitled to
purchase, at the Purchase Price resulting from such adjustment, the number of
shares obtained by multiplying the Purchase Price in effect immediately prior to
such adjustment by the number of shares purchasable pursuant hereto immediately
prior to such adjustment and dividing the product thereof by the Purchase Price
resulting from such adjustment.
5.2 Purchase Price Adjustments. If and whenever after
the date hereof the Company shall issue or sell any shares of its capital stock
(except (a) upon exercise of one or more of the Warrants or (b) pursuant to
options, warrants, rights or similar commitments obligating the Company to issue
shares of its capital stock which are in existence as of October 12, 1999) for a
consideration per share less than the Purchase Price in effect immediately prior
to the time of such issue or sale, the Purchase Price shall be reduced to the
price (calculated to the nearest $0.01) obtained by dividing (i) an amount equal
to the sum of (A) the number of shares of capital stock outstanding, or deemed
to be outstanding, immediately prior to such issue or sale multiplied by the
Purchase Price prevailing immediately prior to such issue or sale plus (B) the
consideration, if any, received by the Company upon such issue or sale, by (ii)
the total number of shares of capital stock outstanding, or deemed to be
outstanding, immediately after such issue or sale. Notwithstanding the
foregoing, no adjustment of the Purchase Price shall be made in an amount less
than $0.01 per share, but any such lesser adjustment shall be carried forward
and shall be made at the time of and together with the next subsequent
adjustment which together with any adjustments so carried forward shall amount
to $0.01 per share or more.
5.3 Option Grants. In the event that at any time
after October 12, 1999 the Company shall in any manner grant (directly, by
assumption in a merger or otherwise) any rights to subscribe for or to purchase,
or any options for the purchase of, capital stock or any securities convertible
into or exchangeable for its capital stock (such rights or options being herein
called "Options" and such convertible or exchangeable stock or securities being
herein called "Convertible Securities"), whether or not such Options or the
right to convert or exchange any such Convertible Securities are immediately
exercisable, and the price per share for which capital stock is issuable upon
the exercise of such Options or upon conversion or exchange of such Convertible
Securities (determined by dividing (i) the total amount, if any, received or
receivable by the Company as consideration for the granting of such Options,
plus the minimum aggregate amount of additional consideration payable to the
Company upon the exercise of all such Options, plus, in the case of any such
Options which relate to Convertible Securities, the minimum aggregate amount of
additional consideration, if any, payable upon the issue or sale of such
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Convertible Securities and upon the conversion or exchange thereof, by (ii) the
total number of shares of capital stock issuable upon the exercise of such
Options or upon the conversion or exchange of all such Convertible Securities
issuable upon the exercise of such Options) shall be less than the Purchase
Price in effect immediately prior to the time of the granting of such Options,
then the total number of shares of capital stock issuable upon the exercise of
such Options or upon conversion or exchange of the total amount of such
Convertible Securities issuable upon the exercise of such Options shall (as of
the date of granting such Options) be deemed to be outstanding and to have been
issued for such price per share. Except as otherwise provided in subsection 5.5,
no further adjustment of the Purchase Price shall be made upon the actual issue
of such capital stock or of such Convertible Securities upon exercise of such
Options or upon the actual issue of such capital stock upon conversion or
exchange of such Convertible Securities.
5.4 Convertible Security Grants. In the event that
the Company shall in any manner issue (directly, by assumption in a merger or
otherwise) or sell any Convertible Securities (other than pursuant to the
exercise of Options to purchase such Convertible Securities covered by
subsection 5.3), whether or not the rights to exchange or convert thereunder are
immediately exercisable, and the price per share for which capital stock is
issuable upon such conversion or exchange (determined by dividing (i) the total
amount received or receivable by the Company as consideration for the issue or
sale of such Convertible Securities, plus the minimum aggregate amount of
additional consideration, if any, payable to the Company upon the conversion or
exchange thereof, by (ii) the total maximum number of shares of capital stock
issuable upon the conversion or exchange of all such Convertible Securities)
shall be less than the Purchase Price in effect immediately prior to the time of
such issue or sale, then the total maximum number of shares of capital stock
issuable upon conversion or exchange of all such Convertible Securities shall
(as of the date of the issue or sale of such Convertible Securities) be deemed
to be outstanding and to have been issued for such price per share, provided
that, except as otherwise provided in Section 5.5, no further adjustment of the
Purchase Price shall be made upon the actual issue of such capital stock upon
conversion or exchange of such Convertible Securities.
5.5 Effect of Alteration to Option or Convertible
Security Terms. In connection with any change in, or the expiration or
termination of, the purchase rights under any Option or the conversion or
exchange rights under any Convertible Securities, the following provisions shall
apply:
(a) If the purchase price provided for in any Option referred
to in subsection 5.3, the additional consideration, if any, payable
upon the conversion or exchange of any Convertible Securities referred
to in subsection 5.3 or 5.4, or the rate at which any Convertible
Securities referred to in subsection 5.3 or 5.4 are convertible into or
exchangeable for capital stock shall change at any time (including, but
not limited to, changes under or by reason of provisions designed to
protect against dilution), then the Purchase Price in effect at the
time of such change shall forthwith be increased or decreased to the
Purchase Price which would be in effect immediately after such change
had such Options or Convertible Securities still outstanding provided
for such changed purchase price, additional consideration or conversion
rate, as the case may be, at the time initially granted, issued or
sold.
(b) On the partial or complete expiration of any Options or
termination of any right to convert or exchange Convertible Securities,
the Purchase Price then in effect hereunder shall forthwith be
increased or decreased to the Purchase Price which would be in effect
at the time of such expiration or termination had such Options or
Convertible Securities, to the extent outstanding immediately prior to
such expiration or termination, never been issued.
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5.6 Dividends of Capital Stock, Options or
Convertible Securities. In the event that the Company shall declare a dividend
or make any other distribution upon any stock of the Company payable in capital
stock, Options or Convertible Securities, then any capital stock, Options or
Convertible Securities, as the case may be, issuable in payment of such dividend
or distribution shall be deemed to have been issued or sold without
consideration unless such dividend or distribution is subject to Section 3
hereof.
5.7 Dilution in Case of Other Securities. In case any
Other Securities shall be issued or sold by the Company, or shall become subject
to issue upon the conversion or exchange of any stock (or Other Securities) of
the Company (or any other issuer of Other Securities or any other person
referred to in Section 4) or to subscription, purchase or other acquisition
pursuant to any rights or options granted by the Company (or such other issuer
or person), for a consideration per share such as to dilute the purchase rights
evidenced by this Warrant, the computations, adjustments and readjustments
provided for in this Section 5 with respect to the Purchase Price and the number
of shares of Common Stock issuable upon exercise of this Warrant shall be made
as nearly as possible in the manner so provided and applied to determine the
amount of Other Securities from time to time receivable on the exercise of this
Warrant, so as to protect the holders of this Warrant against the effect of such
dilution.
5.8 Stock Splits and Reverse Splits. In the event
that the Company shall at any time subdivide its outstanding shares of Common
Stock into a greater number of shares, the Purchase Price in effect immediately
prior to such subdivision shall be proportionately reduced and the number of
Warrant Shares purchasable pursuant to this Warrant immediately prior to such
subdivision shall be proportionately increased, and conversely, in the event
that the outstanding shares of Common Stock shall at any time be combined into a
smaller number of shares, the Purchase Price in effect immediately prior to such
combination shall be proportionately increased and the number of Warrant Shares
purchasable upon the exercise of this Warrant immediately prior to such
combination shall be proportionately reduced. Except as provided in this
subsection 5.8, no adjustment in the Purchase Price and no change in the number
of Warrant Shares purchasable shall be made under this Section 5 as a result of
or by reason of any such subdivision or combination.
5.9 Determination of Consideration Received. For
purposes of this Section 5, the amount of consideration received by the Company
in connection with the issuance or sale of capital stock, Options or Convertible
Securities shall be determined in accordance with the following:
(a) In the event that shares of capital stock, Options or
Convertible Securities shall be issued or sold for cash, the
consideration received therefor shall be deemed to be the amount
payable to the Company therefor, without deduction of any expenses
incurred or any underwriting commissions or concessions paid or allowed
by the Company in connection therewith.
(b) In the event that any shares of capital stock, Options or
Convertible Securities shall be issued or sold for a consideration
other than cash, the amount of the consideration other than cash
payable to the Company shall be deemed to be the fair value of such
consideration as reasonably determined by the Board of Directors of the
Company, without deduction of any expenses incurred or any underwriting
commissions or concessions paid or allowed by the Company in connection
therewith.
(c) In the event that any shares of capital stock, Options or
Convertible Securities shall be issued in connection with any merger in
which the Company is the surviving
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corporation, the amount of consideration therefor shall be deemed to be
the fair value as reasonably determined by the Board of Directors of
the Company of such portion of the assets and business of the
non-surviving corporation as such Board shall determine to be
attributable to such capital stock, Options or Convertible Securities,
as the case may be.
(d) In the event that any capital stock, Options and/or
Convertible Securities shall be issued in connection with the issue and
sale of other securities or property of the Company, together
comprising one integral transaction in which no specific consideration
is allocated to such capital stock, Options or Convertible Securities
by the parties thereto, such capital stock, Options and/or Convertible
Securities shall be deemed to have been issued for such consideration
as determined in good faith by the Board of Directors of the Company.
5.10 Record Date as Date of Issue or Sale. In the
event that at any time the Company shall take a record of the holders of its
Common Stock for the purpose of entitling them (i) to receive a dividend or
other distribution payable in capital stock, Options or Convertible Securities,
or (ii) to subscribe for or purchase capital stock, Options or Convertible
Securities, then such record date shall be deemed to be the date of the issue or
sale of the shares of capital stock, Options or Convertible Securities deemed to
have been issued or sold upon the declaration of such dividend or the making of
such other distribution or the date of the granting of such right of
subscription or purchase, as the case may be; provided, nothing contained herein
will be deemed to require the Company to issue or deliver such capital stock,
Options or Convertible Securities until the capital stock, Options or
Convertible Securities which are the subject of any such dividend, distribution
or subscription right are issued or delivered to the holders of Common Stock.
5.11 Treasury Stock. The number of shares of capital
stock outstanding at any given time shall not include shares owned or held by or
for the account of the Company, and the disposition of any such shares (other
than their cancellation without reissuance) shall be considered an issue or sale
of capital stock for the purposes of this Section 5.
5.12 Certain Issues of Capital Stock Excepted.
Anything herein to the contrary notwithstanding, the Company shall not be
required to make any adjustment to the Purchase Price in the case of the
issuance from time to time after the date hereof of shares of capital stock
reserved by the Company for the grant and exercise of (a) options to purchase
capital stock or (b) rights under the Company's current employee stock purchase
plan, in each case, granted to directors, officers, employees, or consultants of
the Company pursuant to arrangements, plans or contracts approved by the Board
of Directors of the Company.
6. No Dilution or Impairment. The Company will not, by
amendment of its Certificate of Incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of all
such action as may be necessary or appropriate in order to protect the rights of
the holders of this Warrant against dilution or other impairment. Without
limiting the generality of the foregoing, the Company (a) will not increase the
par value or stated value of any shares of stock receivable on the exercise of
this Warrant above the amount payable therefor on such exercise, (b) will take
all such action as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable shares of stock on the
exercise of this Warrant, and (c) will not transfer all or substantially all of
its properties and assets to any other person (corporate or otherwise), or
consolidate with or merge into any other person or permit any such person to
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consolidate with or merge into the Company (if the Company is not the surviving
person), unless such other person shall expressly assume in writing and become
bound by all the terms of this Warrant.
7. Certificate as to Adjustments. In each case of any
adjustment or readjustment in the shares of Common Stock (or Other Securities)
issuable on the exercise of this Warrant, the Company at its expense will
promptly cause its chief financial officer to compute such adjustment or
readjustment in accordance with the terms of this Warrant and prepare a
certificate setting forth such adjustment or readjustment and showing in detail
the facts upon which such adjustment or readjustment is based, including a
statement of (a) the consideration received or receivable by the Company for any
additional shares of capital stock (or, to the extent not constituting Common
Stock, Other Securities) issued or sold or deemed to have been issued or sold,
(b) the number of shares of each class or series of capital stock outstanding or
deemed to be outstanding, and (c) the Purchase Price and the number of shares of
Common Stock (and, to the extent not constituting Common Stock, Other
Securities) to be received upon exercise of this Warrant, in effect immediately
prior to such issue or sale and as adjusted and readjusted as provided in this
Warrant. The Company will forthwith mail a copy of each such certificate to the
holder of this Warrant, and will, on the written request at any time of the
holder of this Warrant, furnish to such holder a like certificate setting forth
the Purchase Price at the time in effect and showing how it was calculated.
8. Registration Rights. The holder(s) of this Warrant and any
other Warrants issued pursuant to the terms hereof from time to time shall be
entitled to the registration rights in respect thereof as provided in the
Registration Rights Agreement between the Company and i2, dated October 12,
1999, in accordance with the terms thereof.
9. Notices of Record Date, etc. In the event of:
(a) any taking by the Company of a record of the holders of
any class of securities for the purpose of determining the holders
thereof who are entitled to receive any dividend or other distribution,
or any right to subscribe for, purchase or otherwise acquire any shares
of stock of any class or any other securities or property, or to
receive any other right, or
(b) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the
Company or any transfer of all or substantially all the assets of the
Company to or consolidation or merger of the Company with or into any
other person, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then and in each such event the Company will mail or cause to be mailed to each
holder of a Warrant a notice specifying (i) the date on which any such record is
to be taken for the purpose of such dividend, distribution or right, and stating
the amount and character of such dividend, distribution or right, (ii) the date
on which any such reorganization, reclassification, recapitalization, transfer,
consolidation, merger, dissolution, liquidation or winding-up is to take place,
and the time, if any is to be fixed, as of which the holders of record of Common
Stock (or, to the extent not constituting Common Stock, Other Securities) shall
be entitled to exchange their shares of Common Stock (or, to the extent not
constituting Common Stock, Other Securities) for securities or other property
deliverable on such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation or winding-up, and
(iii) the amount and character of any stock or other securities, or rights or
options with respect
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thereto, proposed to be issued or granted, the date of such proposed issue or
grant and the persons or class of persons to whom such proposed issue or grant
is to be offered or made. Such notice shall be mailed at least ten Business Days
prior to the date specified in such notice on which any such action is to be
taken.
10. Reservation of Stock, etc. Issuable on Exercise of
Warrants. The Company will at all times reserve and keep available, solely for
issuance and delivery on the exercise of this Warrant, all shares of Common
Stock (or, to the extent not constituting Common Stock, Other Securities) from
time to time issuable upon the exercise of this Warrant.
11. Exchange of Warrants. On surrender for exchange of this
Warrant, properly endorsed, to the Company, the Company at its expense will
issue and deliver to or on the order of the holder thereof a new Warrant or
Warrants of like tenor, in the name of such holder or as such holder (on payment
by such holder of any applicable transfer taxes) may direct, filling in the
aggregate on the face or faces thereof the number of shares of Common Stock
called for on the face or faces of the Warrant so surrendered; provided,
however, that in no event will the Company be obligated to recognize or permit
any transfer of this Warrant that would result in the assignor or any assignee
receiving a Warrant exercisable with respect to 25,000 or fewer shares of Common
Stock.
12. Replacement of Warrants. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Warrant and, in the case of any such loss, theft or destruction of any Warrant,
on delivery of an indemnity agreement or security reasonably satisfactory in
form and amount to the Company or, in the case of any such mutilation, on
surrender and cancellation of such Warrant, the Company at its expense will
execute and deliver, in lieu thereof, a new Warrant of like tenor.
13. Remedies. [Deleted.]
14. Negotiability, etc. This Warrant is issued upon the
following terms, to all of which each holder or owner hereof by the taking
hereof consents and agrees, subject to the limitation on transfer set forth in
Section 11:
(a) title to this Warrant may be transferred by endorsement
(by the holder hereof executing the form of assignment at the end
hereof) and delivery in the same manner as in the case of a negotiable
instrument transferable by endorsement and delivery; and
(b) any person in possession of this Warrant properly endorsed
for transfer to such person (including endorsed in blank) is authorized
to represent himself as absolute owner hereof and is empowered to
transfer absolute title hereto by endorsement and delivery hereof to a
bona fide purchaser hereof for value; each prior taker or owner waives
and renounces all of his equities or rights in this Warrant in favor of
each such bona fide purchaser, and each such bona fide purchaser shall
acquire absolute title hereto and to all rights represented hereby.
Nothing in this paragraph (b) shall create any liability on the part of
the Company beyond any liability or responsibility it has under law.
15. Notices, etc. All notices and other communications from
the Company to the holder of this Warrant shall be mailed by first class
registered or certified mail, postage prepaid at such address as may have been
furnished to the Company in writing by such holder or, until any such holder
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furnishes to the Company an address, then to, and at the address of, the last
holder of this Warrant who has so furnished an address to the Company.
16. Miscellaneous. This Warrant and any term hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of such change, waiver, discharge
or termination is sought. This Warrant shall be construed and enforced in
accordance with and governed by the internal substantive laws of the State of
Texas, without regard to the conflicts of law principles thereof and, to the
maximum extent practicable, will be deemed to call for performance in Dallas
County, Texas. The headings in this Warrant are for purposes of reference only,
and shall not limit or otherwise affect any of the terms hereof. The invalidity
or unenforceability of any provision hereof shall in no way affect the validity
or enforceability of any other provision.
17. Expiration. The right to exercise this Warrant shall
expire at 5:00 p.m. (Dallas, Texas time), October 12, 2001.
18. Warrant Holders Not Deemed Shareholders. No holder of this
Warrant shall, as such, be entitled to vote or to receive dividends or be deemed
the holder of Common Stock or, to the extent not constituting Common Stock,
Other Securities that may at any time be issuable upon exercise of this Warrant
for any purpose whatsoever, nor shall anything contained herein be construed to
confer upon the holder of this Warrant, as such, any of the rights of a
shareholder of the Company or any right to vote for the election of directors or
upon any matter submitted to shareholders at any meeting thereof, or for the
election of directors or upon any matter submitted to shareholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issue or reclassification of stock, change of par
value or change of stock to no par value, consolidation, merger or conveyance or
otherwise), or to receive notice of meetings, or to receive dividends or
subscription rights, until such holder shall have exercised this Warrant and
been issued Common Stock or, to the extent not constituting Common Stock, Other
Securities in accordance with the provisions hereof.
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IN WITNESS WHEREOF, the Company has executed this Warrant as of the
date first written above.
THE VIALINK COMPANY
By: /s/ J. Xxxxxx Xxxxxx
--------------------
Name: J. Xxxxxx Xxxxxx
Title: Chief Financial Officer
[SIGNATURE PAGE TO WARRANT]
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FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
THE VIALINK COMPANY
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant for, and to purchase thereunder, _____________
shares (the "Shares") of Common Stock of The viaLink Company and herewith makes
payment of $________ therefor, and requests that the certificate for such Shares
be issued in the name of, and delivered to ______________________________,
federal taxpayer identification number ______________________, whose address is
____________________ _________________________________________.
In connection with the exercise of this Warrant, the undersigned
represents and warrants as follows:
(a) The undersigned is purchasing the Shares for the account
of the undersigned and not as a nominee or agent, and the undersigned
has no present intention of granting any participation in the same, and
does not have any contract, undertaking, agreement or arrangement with
any person to grant participation to such person or to any third
person, with respect to any of such Shares;.
(b) The undersigned has received or has had full access to all
the information it considers necessary or appropriate to make an
informed investment decision with respect to the Shares. The
undersigned has had an opportunity to ask questions of and receive
answers from the Company and to obtain additional information (to the
extent the Company possessed such information or could acquire it
without unreasonable effort or expense) necessary to verify any
information furnished to undersigned or to which the Company has
access.
(c) The undersigned understands that the Shares are
characterized as "restricted securities" under the federal securities
laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws
and applicable regulations such securities may be resold without
registration under the Securities Act of 1933, as amended (the
"Securities Act") only in certain limited circumstances. In this
connection, the undersigned represents that it is familiar with
Securities and Exchange Commission ("SEC") Rule 144, as presently in
effect, and understands the resale limitations imposed thereby and by
the Securities Act.
(d) The undersigned is an "accredited investor" within the
meaning of SEC Rule 501 of Regulation D, as presently in effect.
(e) The undersigned agrees not to offer, sell, exchange,
transfer, pledge or otherwise dispose of any of the Shares unless at
that time either:
(1) such transaction is permitted pursuant to the
provisions of Rule 144 under the Securities Act or
another exemption from registration under the
Securities Act and all applicable state securities
laws;
(2) a registration statement under the Securities Act and
all applicable state securities laws covering such
securities proposed to be sold, transferred or
otherwise disposed of, describing the manner and
terms of the
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proposed sale, transfer or other disposition, and
containing a current prospectus, is filed with the
SEC and all applicable state securities law agencies
and made effective under the Securities Act and all
applicable state securities laws; or
(3) an authorized representative of the SEC and all
applicable state securities agencies shall have
rendered written advice to undersigned (with a copy
thereof and of all other related communications
delivered to the Company) to the effect that the SEC
and/or such state securities agencies will take no
action, or that the staff of the SEC and/or such
state securities agencies will recommend that the SEC
and such state securities agencies, as applicable,
take no action, with respect to the proposed offer,
sale, exchange, transfer, pledge or other disposition
if consummated.
(f) All certificates representing the Shares and any
certificates subsequently issued with respect thereto or in
substitution therefor shall bear a legend that such securities may only
be sold or disposed of in accordance with (i) the provisions of the
Securities Act, the rules and regulations thereunder and any applicable
state securities laws, (ii) pursuant to an effective registration
statement or (iii) pursuant to an exemption from the
registration/qualification requirements of the Securities Act and any
applicable state securities laws. The Company, at its reasonable
discretion, may cause stop transfer orders to be placed with its
transfer agent with respect to the certificates for the Shares but not
as to the certificates for any part of such Shares as to which said
legend is no longer required.
Dated: -----------------------------------------
----------------- (Signature must conform to name of holder
as specified on the face of the Warrant)
-----------------------------------------
(Address)
Signed in the presence of:
----------------------------
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FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and
transfers unto ______________________________________, federal taxpayer
identification number ___________, whose address is
___________________________________________________, the right represented by
the within Warrant to purchase ___________ shares of Common Stock of The viaLink
Company to which the within Warrant relates, and appoints
___________________________ Attorney to transfer such right on the books of The
viaLink Company with full power of substitution in the premises.
Dated: -----------------------------------------
----------------- (Signature must conform to name of holder
as specified on the face of the Warrant)
-----------------------------------------
(Address)
Signed in the presence of:
----------------------------
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